Hong Kong Law Journal 1971 - 2018

Vol. 47, Part 1 of 2017

In this comment, we disagree with the Court of Appealâ€™s decision to disqualify two newly elected members of the Legislative Council from office. While we accept that the judiciary is empowered under Art 104 of the Basic Law to determine whether an oath taken is valid, it is our view that after the oath is judicially deemed invalid, it should be left to the President of LegCo to determine whether the lawmaker is to be denied a second chance of retaking the oath and be disqualified. First, the CA held that para 2(3) of the relevant Interpretation by the Standing Committee of the National Peopleâ€™s Congress â€śautomatically disqualified [the pair of lawmakers] from assuming their officesâ€ť, but the term â€śautomaticâ€ť or â€śautomaticallyâ€ť is found nowhere in the Interpretation. The Interpretation only uses the term â€śforthwithâ€ť, which means â€świthout delayâ€ť, and it would not be inconsistent with the Interpretation for the CA to punt the issue over to the President to proceed with the disqualification expeditiously. Second, reading ss 19 and 21 of the Oaths and Declarations Ordinance (Cap 11) together, we argue that a lawmaker can only be disqualified for declining to take the requisite oath if he had not taken a valid oath after a reasonable time had elapsed. Therefore, the lawmaker is not disqualified â€śautomaticallyâ€ť on the first occasion where he declined to take the requisite oath. Third, the principle of non-intervention in the internal process of LegCo applies herein. Whilst the courts have jurisdiction to determine whether the President has the general power to grant or deny a newly elected LegCo member the opportunity of retaking the requisite oath after the original attempt was judicially deemed invalid, the courts will not exercise jurisdiction to determine the specific occasion or manner of exercise of this power by the President. Finally, if the Interpretation is treated as a piece of legislation instead of a judicial decision, and if Hong Kong courts were to approach this legislation using common law principles of statutory interpretation, the presumption against retrospectivity of legislation applies; and on the facts of this case, this Interpretation would not operate retrospectively to events that predated its announcement.

In Ho Kwok Tai v Collector of Stamp Revenue, the Court of Appeal held that the respondent taxpayer was not eligible for a refund of additional ad valorem stamp duty (AVD) where he completed the disposal of two residential properties he had previously owned shortly after entering into an agreement to purchase a single replacement property. This article critically analyses the courtâ€™s decision with reference to both the reasoning of the Court of First Instanceâ€™s judgment below, which found for the taxpayer, and the proper construction of s 29DF of the Stamp Duty Ordinance (Cap 117), which was the statutory provision on which the dispute turned. The Revenueâ€™s appeal was allowed on the basis that the drafting of s 29DF suggested that a refund of additional AVD was only available in circumstances where the taxpayer disposed of a single original property shortly after acquiring a replacement property, and not, as in the appellantâ€™s case, when two such original properties were sold. The commentary argues that with reference to the purposive context of the SDO and specifically the charge to additional AVD, the courtâ€™s decision was inconsistent with the plain policy purpose of the refund mechanism for additional AVD and by extension contrary to the legislatureâ€™s intent in enacting s 29DF.

The author, a Permanent Judge of the Hong Kong Court of Final Appeal, examines the offence of outraging public decency in order to illustrate the dynamism and limits of the common law. This article is the text of a lecture delivered by the author at the University of Hong Kong.

The author, the Companies Judge of the Court of First Instance of the High Court, examines the issues arising in recent years concerning cross-border insolvency in the Hong Kong context. This article is the text of a lecture delivered by the author at the University of Hong Kong on 17 November 2016.

Global constitutionalism is a popular topic among internationally oriented public law scholars. Drawing on modern comparative law scholarship, this article examines and discusses global constitutionalism from a critical point of view. Many contemporary authors seem to presume that the idea of constitutionalism is, or that it must be, universal. According to some views, constitutionalism has now gone global. In agreement with this thinking, the commitment to the rule of law, democracy and human rights has arguably become a defining feature in a global scale. In practice, this means that constitutionalism is regarded as relevant not only in the context of states but also when we assess and interpret the development of law beyond the state. This article interrogates underlying themes and calls the universality of global constitutionalism into question.

The escalating complaints of international brands about unauthorised use of their trade marks or resembling marks on non-competing goods or services have provoked rethinking of trade mark law. In Hong Kong, as in most other jurisdictions, there are specific statutory provisions for the protection of well-known trade marks. Comparing Hong Kong, UK and European authorities, this article examines the scope of ss 18(4) and 12(4) of the Trade Marks Ordinance (Cap 559), explains why they should be construed as limited to dissimilar goods and services and concludes that the Trade Marks Registry Work Manual is in desperate need of revision.

Although both failed attempts of copyright amendment in the Copyright (Amendment) 2011 and 2014 Bills shared with one another an emphasis on copyrightâ€™s limitation over free speech, the contract override issue indicates a particular confusion as to the nature of copyright, contract freedom and international obligation. As property right recognition gives constitutional support to copyright and contract serves as the means to individual freedom manifested in private property, contract override bears certain constitutional legitimacy. This article argues, however, that while property right has an inbuilt limitation from the needs of others, and the Victorian sanctity of contract has been gradually qualified by â€śthe needs of the allâ€ť, the balance of rights and obligations to the consideration of public interest and social development is imperative and is an international obligation for intellectual property protection under the Agreement on Trade-Related Aspects of Intellectual Property Rights subject to no derogation. The proposal that allows contract, as the means for individual freedom manifested in private property, to override those copyright exceptions aiming at limiting private rights for the balance of rights and obligations finds no jurisprudential support. This article calls for a careful examination of the nature of copyright, contract freedom and international obligation should Hong Kongâ€™s copyright amendment effort resume.

The Global Competitiveness Index reveals that Hong Kongâ€™s relative underperformance compared to Singapore is because it has lagged behind in boosting local innovation and performed less satisfactorily in technological advancement. This can be regarded as a result of inadequate government support. The Hong Kong governmentâ€™s stubborn belief in its tax system prevents it from making a timely response to the changing environment. A global trend of providing generous tax incentives has made the tax system in Hong Kong less competitive in boosting and attracting investment into innovation. What can Hong Kong learn from experience elsewhere? This article explores the necessity of adopting research and development (R&D) tax incentives to spur innovation and achieve the technological advancement the Hong Kong government desires. The introduction of the R&D tax incentives in Hong Kong proposed in this article may present an opportunity for Hong Kong to keep up with the global trend of prioritising innovation.

While traditional Chinese medicine (TCM) has been categorically excluded as a valid medical system in many countries, it remains difficult to separate TCM from conventional medicine under the context of the creative economy. This is because there are increasing number of new drugs which not only rely solely on the technology of modern medicine but also take advantage of traditional medicine knowledge. The fragmentation of the international community has impeded the establishment of a more coherent international legal framework for the global health system. Moreover, the same degree of fragmentation at the national level also results in obstacles to the combination of the two medical systems. It is suggested that the World Health Organization could act as a platform to promote the combination of conventional medicine and TCM; however, national cooperation seems to be a more feasible and effective way of doing it, which could also complement the global health governance framework.

In Moodyâ€™s Investors Service Hong Kong Ltd v Securities and Futures Commission, the Securities and Futures Appeals Tribunal was required to determine whether a report issued by Moodyâ€™s fell within the scope of Hong Kongâ€™s statutorily defined credit rating regime. The Tribunal determined that the report was either itself a credit rating or part and parcel of Moodyâ€™s credit rating services. This article analyses the Tribunalâ€™s determination and concludes that it is flawed primarily as a result of concerns over its application of the purposive construction of statutory provisions and a failure to closely analyse the statutorily defined term â€ścredit ratingâ€ť. It is suggested that the determination gives rise to problematic consequences including blurring the regulatory perimeter of what constitutes a credit rating and providing credit rating services.

Since the activation of the new constitutional order of Hong Kong on 1 July 1997, a plethora of court decisions have directly or indirectly implemented the concepts of separation of powers, and constitutional review, in its strong form, although all two concepts were not explicitly stipulated in the Basic Law. On top of that, separation of powers and strong judicial review are distinctive features of the subnational constitutional order of Hong Kong given that they donâ€™t mirror the constitutional configuration of China. While this unique configuration is explained by historical circumstances and is enshrined in the principle of â€śOne Country, Two Systemsâ€ť, this article takes into consideration the basic component of the separation of powers, the constitutional review, with the aim to distill how the doctrine of separation of powers in Hong Kong is influenced by subconstitutionalism. This article examines the development of judicial review, and how it was perceived and integrated in the current legal order. Then, it continues to analyse the breadth of this concept based on the relevant courtsâ€™ decisions. The main argument is that the model of separation of powers in Hong Kong due to its interaction with its subconstitutional character resembles the model of weak judicial review. This is a unique configuration which is explained based on two elements. First, the position of the Court of Final Appeal at the top level of the hierarchy of the judicial system with the power of finality, and second, the catalytic role of the National Peopleâ€™s Congress Standing Committee to interpret the Basic Law which can also be triggered by the Chief Executive.

United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses is the only international treaty that governs the uses and conservation of the waters that cross international boundaries. However, its major defects in territorial sovereignty and dispute settlement mechanism should not be ignored. International society should improve the Convention with amendments, interpretations and should play a bigger role of international organisation. China, although yet to ratify the Convention, will still be influenced potentially by the rule-making treaty on its uses and conservation of relevant waters. Given the advantages and feasibility of its accession to the Convention, China should make serious consideration to ratify the Convention for its national interests.

A letter of indemnity is commonly used in carriage of goods by sea. There are no relevant provisions in the Chinese Maritime Code 1992 regulating the letter of indemnity. The Chinese Contract Law 1999 is the appropriate statute law for issues relating to the letter of indemnity. However, Chinese judicial practice considered the letter of indemnity as part of a contract of carriage of goods by sea, and therefore the Chinese Maritime Code 1992 applies to disputes over the letter of indemnity. The judgments from the Chinese courts, including the Supreme Peopleâ€™s Court in The Orient Fortune and The Orient Fortune (No 2), showed a misunderstanding of the letter of indemnity and the uncertainty of judicial practice in maritime trials. This article examines the fundamental issues relating to the letter of indemnity in carriage of goods by sea and provides academic views on those issues.

The author is an American China scholar who spent 11 months in Hong Kong in 1963â€“1964 to study the Chinese law and government. This article portrays his adventures during his stay in Hong Kong, including his settling in the Colony, interviewing the refugees, establishing the Universities Service Centre, making a broad range of friends and learning some lessons on regionalism in China.

291

BOOK REVIEWS

Advanced Introduction to the Law of International Organizations, Jan KlabbersAmy Barrow

311

Title and Title Conflicts in respect of Intermediated Securities under English Law, Dr Wenwen LiangGuangjian Tu

Vol. 47, Part 2 of 2017

The purpose of this article is to provide both a theoretical and an evidence-based assessment of the abuse of incarceration in sentencing juvenile drug offenders in Hong Kong. Over the past few decades, the courts have been overzealous to incarcerate juveniles who commit serious drug offences, drug trafficking in particular, in the name of â€śdeterrenceâ€ť or advancing â€śpublic interestsâ€ť. Worse still, it is commonplace that a drug-smuggling teen with no criminal record is locked up in prison for almost a decade. Yet the undeniable truth is that most, if not all, juvenile drug offenders are unlikely to be deterred by the mere prospect of a harsh sentence, with mounting evidence showing a lack of correlation between lengthy sentences and deterrent effects. For the purpose of reform, the Convention on the Rights of the Child (CRC) approach merits special attention. This model emphasises the rehabilitation objective in juvenile sentencing and strictly obliges the judges to undertake a â€śtwo-stage processâ€ť in ascertaining a childâ€™s best interests, representing a more balanced, holistic and child-centred approach to drug offence sentencing. The transplantation of the CRC approach will potentially result in less punitive and fairer sentencing outcomes that better suit the â€śbest interestsâ€ť of juvenile drug offenders in Hong Kong.

In this article, I try to ascertain whether there is any normative or doctrinal foundation for the extended joint enterprise doctrine. In particular, I examine the normativity of the â€śunlawfulnessâ€ť rationale that has been invoked to justify the extended joint enterprise doctrine. All the cases concerning common purpose complicity scenarios where unlawfulness has been an issue hinge on the doctrine of constructive crime, so I try to show that those who are invoking that doctrine of unlawfulness to support their normative case for extended joint enterprise liability are working from a mistaken doctrinal premise, because the doctrine of constructive crime in the development of the law of complicity was limited to homicides, whereas complicityâ€™s doctrine of common intent applied to all unlawful joint enterprises. Furthermore, it is contended that unlawful agreements (conspiracies) in themselves do not supply a normative justification for this sort of complicity, even when the agreement is consummated, because the accessory does not take an equal normative position in an unintended collateral crime that is merely foreseen as a possibility.

The enactment of the new Companies Ordinance in Hong Kong has brought significant changes to the corporate law landscape by simplifying processes such as amalgamations, reductions of capital and the repurchase by a company of its own shares, with the objective of facilitating company restructuring. It is accordingly surprising that revenue legislation in Hong Kong has failed to keep pace with these developments and that published guidance issued by the Inland Revenue Department on point is both sparse and unsatisfactory. This article analyses the ad valorem stamp duty implications of court-free amalgamations and share buy-backs, with a view to identifying the lacunae in the Stamp Duty Ordinance, considering how the provisions in the two statutes as currently in force should interact and positing viable legislative solutions on the basis of the Singaporean experience.

The Hong Kong Government has argued that anti-discrimination legislation on the ground of sexual orientation has not been introduced because â€śmajority supportâ€ť has not been reached. This article challenges such an argument by analysing data collected through a telephone survey of a representative sample of 1,005 adults. First, it questions whether public opinion should be given such weight in the policy debate by asking: How informed are the public about lesbian, gay, bisexual and transgender (LGBT) people? Second, with the same data set, it found that there is already â€śmajority supportâ€ť for legislation against discrimination on the ground of sexual orientation. This article makes several contributions to the research literature. First, it challenges the â€śmajority supportâ€ť argument on not introducing anti-discrimination legislation on the ground of sexual orientation. Second, it debunks the myth that Hong Kong society is as negative on LGBT rights as portrayed. Third, it argues that the â€śmajority supportâ€ť argument should be scrutinised when it is deployed in other settings to delay or reject legal changes on controversial topics.

The evolution of online dispute resolution (ODR) has witnessed both success and more prominently failure in the last two decades. Academia, however, has not fully reflected from a theoretical perspective the most appropriate ODR for the online environment. This article attempts to offer its views based on the theory of social embeddedness. It first clarifies the definition of ODR, and then differentiates two types of ODR, exogenous and endogenous. The success and failure of the two types of ODR are examined under the theory of social embeddedness with a case study of online arbitration and Chinaâ€™s largest online marketplace Taobao. In particular, exogenous ODR, due to the embeddedness problems in transplantation, finds difficulties in confrontation with the double competition of traditional dispute resolution and endogenous ODR. In comparison, endogenous ODR, as a spontaneous order, is more suitable for the online community. The article concludes that dispute resolution in the e-era must be composed of traditional dispute resolution, exogenous and endogenous ODR. Two future trends are also observed, ie, endogenised exogenous ODR and specialised endogenous ODR.

The exercise of the power by the Standing Committee of the National Peopleâ€™s Congress (NPCSC) to give a binding interpretation on the Basic Law is a prominent issue in Hong Kongâ€™s constitutional governance under the framework of One Country, Two Systems. Now 20 years after the handover and the establishment of the Special Administrative Region under the Basic Law on 1 July 1997, quite what is the scope of this power remains unclear, together with the respective procedure and the principles that should be observed in exercising the power. This article systematically studies the exercise of the interpretative power by the NPCSC on the Basic Law in the context of its 5th Interpretation on Art 104 issued on 7 November 2016 from a number of angles: first, the authority of the NPCSC to interpret Art 104 and the respective procedure; second, the methods and principles adopted by the NPCSC in interpreting Art 104 and last, the timing the NPCSC issued its Interpretation and the corresponding coping mechanism by the local judiciary. In analyzing the events and their implications surrounding the issue of the 5th Interpretation, this article tries to summarize a few under-studied areas in relating to the exercise of the power by the NPCSC, eg, who can request an Interpretation, whether there is any justifiable restriction on the NPCSCâ€™s power to interpret certain parts of the Basic Law, how to distinguish an Interpretation on the Basic Law from an Amendment to the Basic Law, what is the constitutional status of an NPCSC Interpretation and when is its date of commencement, and how the local judiciary shall address an NPCSC Interpretation that either overlaps or contradicts the local laws in reaching a court decision. The answers to these questions concern not only the 5th Interpretation but also how Art 158 of the Basis Law should be understood and how the principle of One Country, Two Systems has been implemented since its introduction 20 years ago.

In this article, Justice Palmer outlines a descriptive conception of constitutional dialogue. It is enriched by focusing on what is constitutional in reality and in considering how loudly, and in what languages, the branches of government engage in dialogue. As a normative matter, he suggests it is important for the rule of law that the branches of government speak in different languages and have systemically different perspectives. Otherwise, it would not be the law which rules; it would be the â€śrulingâ€ť culture.

Through participatory observation and in-depth interviews with 38 practitioners, this research provides an explanation for the high pretrial detention rate in China by examining the underlying mechanisms as to how prosecutors make their decisions in practice. Three legal conditions for pretrial detention that should be simultaneously satisfied, ie, evidence condition, penalty condition and necessity condition, are either distortedly enforced or hardly enforced in practice. The complexity of enforcement of the legal requirements makes the â€śfewer and more cautious detention[s]â€ť policy hardly realised in China. The implementation of Chinaâ€™s pretrial detention also suggests that fact-finding, though of the utmost importance in Chinaâ€™s criminal justice system, might sometimes make a concession to crime control. Also, compared to fact-finding and crime control, protection of human rights and due process of law are usually under-evaluated.

The Hague Convention on Choice of Court Agreements establishes uniform rules concerning international jurisdiction founded upon choice of court agreements and the recognition and enforcement of judgments of the chosen court. It will help to facilitate partiesâ€™ autonomy, enhance certainty and predictability and promote the free movement of judgments. This new litigation mechanism will provide parties an alternative in international dispute resolution in parallel with arbitration. After the Hague Conventionâ€™s entry into force, it is relevant for China to consider acceding to the Convention. This article thus provides an overall comparison between the Hague Convention and the Chinese law, as well as an assessment on the judicial implications for China.

The delegation of flexible legislative powers to Chinaâ€™s five Special Economic Zones (SEZs) [ç»ŹćµŽç‰ąĺŚş] in the reform era was attributed to both the endorsement of the Chinese central government and the strong commitment of SEZ officials. SEZs serve as a Petri dish where market-oriented legislation was introduced and practiced and later spread to elsewhere in the country. They ultimately gathered the momentum for turning the tide of contestation in the domains of ideology, economy and policy in favour of a market system and created conditions favourable for the market-oriented legislation at national level. A more significant impact of the SEZ legislation is that it serves as one of the main sources of reference for national legislation on the market economy. The SEZ legislation provides a series of rules on the market economy that are later written into national laws and regulations. With the consistent increase in the number of national legislation, the SEZ legislation tends to lose its significance. Nevertheless, after three decades of legislative practice, SEZ officials have created a unique reformist identity that is crucial for introducing legislative reforms in other domains that are critical to Chinaâ€™s long-term stability and development.

This article analyses the movie Evening Rain [ĺ·´ĺ±±ĺ¤śé›¨], which was made in 1980 by some of Chinaâ€™s most talented filmmakers, including the great Wu Yonggang. Though it may seem old-fashioned now, the film is beautifully made and its powerful message still resonates today. Like other examples of scar cinema, Evening Rain depicts injustices that Chinese people suffered during the Cultural Revolution, mostly as a result of the lawlessness of that period. But unlike most such films, Evening Rain directly addresses the value of law and the protections it might offer, especially for writers and artists like the movieâ€™s central character, the poet Qiu Shi.

This review of â€śLord Sumption and the Limits of the Lawâ€ť discusses not only Lord Sumptionâ€™s Lecture â€śThe Limits of Lawâ€ť but also the views of the commentators who have contributed to other chapters in the book. However, the focus of the review is on Lord Sumptionâ€™s strictures concerning the nature and limits of the judicial role, most notably on his claim that polycentric issues should not be the subject of judicial adjudication and his criticism of the Strasbourg Court. This criticism of the Court centres on its departure from originalism in interpreting the European Convention on Human Rights. The review, while acknowledging the theoretical basis of Lord Sumptionâ€™s limitations on the judicial role, challenges the validity of polycentricity as an absolute bar to judicial adjudication and contests reliance on originalism as the accepted methodology in constitutional interpretation. The discussion acknowledges weaknesses in the Strasbourg Courtâ€™s decision-making but suggests that they are not so much the product of â€śliving instrumentâ€ť interpretation as reasoning that is unpersuasive, which leads to controversial outcomes.

The East-West divide is a source of multiple intellectual and policy chasms. One of its manifestations in the international legal space is the wide gap between mainstream perceptions of the Chinese approach to international law in general and state sovereignty in particular, commonly held by researchers and practitioners in the Global North, and how it is conceived and pursued on the Chinese side. A potentially influential book seeks to remedy this situation by furnishing a comprehensive survey of relevant doctrines and their applications, highlighting Chinaâ€™s emerging role as a responsible global norm setter that operates in a structurally flawed international legal setting dominated by Western powers. The rebalancing act is inevitably somewhat one-sided, but it materially enriches the academic discourse on the subject.

659

Book Reviews

Hong Kong Competition Law Carter Chim

689

The Commercial Appropriation of Fame: A Cultural Analysis of the Right of Publicity and Passing Off Marco Wan

Vol. 47, Part 3 of 2017

The constitutionality of the co-location of Customs, Immigration and Quarantine (CIQ) checkpoints of both Hong Kong and Mainland China at the West Kowloon Terminus faces two main legal issues. One is whether Chinese CIQ laws need to be included in Annex III of the Basic Law according to its art 18. This article proposes a new interpretation of art 18 and argues that art 18 may not be a real legal obstacle. The other is whether it is feasible to transfer territorial jurisdiction over a small piece of land at the Terminus from Hong Kong back to China without violation of the Basic Law and Chinese Constitution. Under the condition that the Basic Law must not be amended, this article proposes a better arrangement that is consistent with the Basic Law and Chinese Constitution. In addition, this article also examines three existing models of co-location and the possibility to transplant them to Hong Kong. Given that none of the three existing models can bypass the above two legal issues, this article proposes an alternative mixed model which can achieve the convenience of co-location without negative impact on Hong Kong peopleâ€™s confidence in â€śone country, two systemsâ€ť. This article finally argues that the amendment of the Basic Law is the easiest and best means to remove completely the legal barriers for implementing co-location at the West Kowloon Terminus. That is, however, only achievable once mutual trust has been established between Hong Kong and Mainland China.

This article argues that there is a profound disconnect between corporate governance â€” accountability from the board to the shareholders â€” and a fundamental doctrine in company law, which I shall demonstrate is that directors are not and should not be legally required to act in the shareholdersâ€™ interests. Given that under the law, directors are not and should not be under a duty to act in the shareholdersâ€™ interests, the notion of directorial accountability to shareholders does not have a compelling legal basis and thus has to be reconsidered.

As a result of a complex environment, overwhelmingly large patient volumes and the high unpredictability of emergency medicine, the professional roles of emergency nurses are continuously evolving and the risk for negligence and malpractice suits continues to escalate. Although the judicial system offers a fair and just means of resolution, it may not be the best solution in managing healthcare disputes. In this article, the role of emergency nurse practitioners is considered and the data of a legal empirical inquiry on the role of mediation as a viable alternative to settling healthcare disputes are presented. The data show that most emergency nurses perceive a moderate to high level of risk in their everyday work environment and activities and they are also of the opinion that mediation may be a viable alternative to settling healthcare disputes. Yet, very few emergency nurses have received appropriate mediation training or have participated in mediation. Curiously, while a significant percentage of the participants in this legal empirical inquiry agreed that mediation was a suitable means to settle healthcare disputes, only 44 per cent of emergency nurses were willing to participate in mediation. The data presented in this article show that the development of healthcare mediation is still in its infancy and support the notion that much more effort is required to clarify misconceptions and uncertainties around mediation, among practitioners and patients alike, before alternative dispute resolution mechanisms, like mediation, can further develop in the context of healthcare.

The Singaporean government claims to retain but not enforce s 377A of the Penal Code, the law that criminalises sexual relations between men, to reflect Singaporeansâ€™ conservative attitudes while accommodating gay citizens. But what are these attitudes? How firmly rooted are they? Based on the first national survey on social attitudes towards same-sex relations and their criminalisation in Singapore, this article contributes empirical perspectives to research on the challenges for legal reform and the protection of sexual minorities in Singapore. The survey shows that the majority of respondents displayed conservative attitudes towards same-sex relations. When informed about the non-enforcement policy, the number of survey respondents who initially disagreed with the criminal provision decreased, and most of them found non-enforcement to be an acceptable compromise in place of repealing the law. However, this article points out that non-enforcement can nevertheless have negative implications for the safety and well-being of sexual minorities in Singapore. It also cautions that mere retention of s 377A can reinforce social disapproval of homosexuality and perpetuate existing support for criminalisation, impeding the advancement of sexual minoritiesâ€™ rights in Singapore.

This article explains why art 158 of the Basic Law may render Hong Kongâ€™s autonomy vulnerable and explores how Hong Kong courts can capitalise on common law techniques to mitigate the problems caused by art 158, using the most recent interpretation of art 104 of the Basic Law in 2016 as an example for illustration. In arguing that Hong Kong courts are in the best position to defend Hong Kong against improper Chinese acts, the article suggests that Hong Kong courts have jurisdiction to and should determine whether a purported interpretation is in substance an amendment before deciding whether and how to enforce it, reconsider whether the Standing Committee of the National Peopleâ€™s Congress (NPCSC)â€™s power under art 158 is free standing and revisit the issue of whether NPCSC interpretations should have retrospective effect.

The right to be forgotten is an increasingly contentious issue after the case of Google Spain. Much academic ink had since been spilt on the subject with regard to defining and implementing the said right. This article notes that developments on such a right to erasure have not been particularly robust within the context of Hong Kong, despite significant judicial clarifications overseas as well as administrative support from the Privacy Commission. This article opines that technological progress and the aggressive market-cum-lifestyle expansion of search engines necessitate a fresh round of rigorous discussion on the applicability of this right. This imperative is especially germane in the case of Hong Kong, a vibrant financial hub and tech-saturated city. This article draws on regulations and case laws from various jurisdictions to analyse the normative significance and utility in adopting the right to be forgotten.

Multilateral development banks (MDBs) all have a strong preference to avoid conflicts and to keep matters decided internally. They are averse to strict, judicial-type law application. Their dispute resolution mechanisms are thus essentially administrative in nature, although in exceptional forums, the MDBs agree through charters or contracts to get exposed to judicial process or arbitration. MDBs do not have a uniform dispute settlement system: different MDBs have their own dispute resolution mechanisms, and within each MDB, there are various dispute resolution mechanisms to deal with different subject matters. Most dispute resolution forums for MDBs are built from within, but are independent from Bank management. These mechanisms generally perform well in handling different disputes, which is extraordinary given the soft law nature of international financial law in a larger context. The Asian Infrastructure Investment Bank is the first MDB initiated by a group of Asian developing countries with China at the centre. Its committed high standards can only be possible with fair and effective dispute resolution mechanisms.

In this piece, the text of a public lecture delivered at the University of Hong Kong by Lord Neuberger, a non-permanent judge of the Court of Final Appeal, the speaker identifies the elements of the rule of law and then focuses attention on the requirement for genuine enforceability, in particular, the role of the judiciary in achieving genuine enforceability.

This article analyses the legal implications of Hanjin Shipping Co, Ltdâ€™s (Hanjin Shippingâ€™s) bankruptcy in 2016. The most aggrieved parties include the shipowner, members of alliances, cargo interests, crew members, banks and bunker suppliers. This article examines how these stakeholdersâ€™ claims are treated under the rehabilitation proceedings in Korea. Hanjin Shippingâ€™s rehabilitation proceedings involve foreign factors such as a stay order and maritime lien. The author addresses how to improve the fair and just treatment of creditors and debtors involved in rehabilitation proceedings, domestically and internationally.

Harmful cyberactivities pose an increasing threat to cybersecurity. As the legal response, the legislator steadily criminalised cyberactivities by amending the criminal code in 1997, 2009 and 2015. The article describes this process of criminalisation and analyses its features. First, cyberactivities have been categorised and dealt with differently. Second, not only the core acts â€” the act of intruding into computer information systems, the act of damaging data in computer information systems and the act of committing other crimes by using the computer as a tool â€” but also the activities of assisting in or preparing for committing those core acts have been criminalised. This reflects the nationâ€™s prevention-oriented attitude towards cybercrime.

The Sino-Vietnam dispute over hydrocarbon resources exploration in Nansha waters has been troubling both parties for decades. As the legality test seems crystal clear that any partyâ€™s unilateral development of hydrocarbon resources in the disputed waters shall be considered as a violation of international law and therefore illegal, why does the dispute over exploration activities in Nansha Waters persist? There are three issues beyond legality: the sovereignty dispute over Nansha, the theoretical and practical dilemma of the joint development and Vietnamâ€™s lack of urgency for political cooperation. To settle the dispute, China should make efforts to conclude the maritime delimitation agreement with Vietnam as a long-term goal, propose a better joint development mechanism as a provisional arrangement and synthesise diplomatic, legal and military means to safeguard its sovereignty and maritime interests during the process.

This article uses new archival materials to provide a first account of how a typical law-trained late 19th century and early 20th century Chinese diplomat and lawyer used public international law as a sword to defend her country against foreign encroachments. It uses Owyang Kee, one of the pioneering Chinese law students and diplomats in the United States to illustrate the case. It will trace his pre-law education and experiences and his legal education at New York University and University of California, Berkeley. It will focus on the public international law topic thesis he wrote for his master degree, highlighting his sharp legal analysis, creative use of legal authorities and brilliant arguments in defence of China. Finally, it will demonstrate how Owyang used his international law education to ferociously attack the Chinese Exclusion Act with skills and maturity rarely seen in the previous generation of Chinese diplomats thanks to his legal education. Simply put, this article showcases how Owyang represented the first generation of Chinese diplomats and lawyers who waged embryonic lawfare in defence of their debilitated country.

987

Book Reviews

Chinaâ€™s Legal System Thomas Coendet

1013

The Making of the Modern Chinese State: Cement, Legal Personality and Industry Dr Jonathan Chappell